The Court prohibited the appointment by both the Applicant Physician and Respondent Authority of certain individuals to an Appeal Committee, on the basis that those appointments would give rise to a reasonable apprehension of bias
Administrative law – Decisions of administrative tribunals – Physicians and surgeons – Competence – Penalties and Suspensions – Medical Advisory Committee – Rules and by-laws – Judicial review – Natural justice – Bias
Fong v. Winnipeg Regional Health Authority,  M.J. No. 25, Manitoba Court of Queen’s Bench, January 10, 2006, Greenberg J.
The Applicant is a vascular surgeon, while the Respondent is the government authority responsible for the delivery of health services in the City of Winnipeg. In the Spring of 2004, the Medical Advisory Committee to the WRHA received complaints regarding the Applicant’s management of certain patients. MAC referred the complaints to a Hearing Panel composed of three physicians. The Hearing Panel recommended that the appropriate disposition of the complaint was a temporary restriction on the Applicant’s privileges for a period of two months. In accordance with the bylaw, the report of the Hearing Panel was forwarded to the WRHA Board for its consideration. The Board rejected the Hearing Panel’s recommendation and imposed a temporary restriction of privileges for a period of twelve months.
Pursuant to the bylaw, the Applicant appealed the Board’s decision to an Appeal Committee. Section 7.5.2 of the Hospital Medical Staff Bylaw provides for a three person Appeal Committee, one of whom is selected by the Member (Applicant), one by the WRHA Board, and one person, as chair, mutually acceptable to the other two Committee members. The Applicant selected a Dr. Enns as his nominee. Dr. Enns had been one of the three members of the Hearing Panel which had recommended a two-month restriction of privileges. The WRHA Board selected a Father Olds as the Board member to sit on the Appeal Committee. Father Olds had not participated in the Board’s decision in this matter.
The Court first considered whether the appointment of Dr. Enns to the Appeal Committee gave rise to a reasonable apprehension of bias. Since Dr. Enns had already heard the evidence against Dr. Fong and participated in the decision to recommend his suspension, it was obvious that his participation in the Appeal Committee would give rise to a reasonable apprehension of bias. The idea of a decision-maker sitting on appeal from his own decision has been described as “unthinkable”. While the structure of the Appeal Committee does allow for some degree of partiality in that both parties (the doctor and the WRHA Board) are entitled to choose members of the Appeal Committee and, presumably, can choose individuals who they view as favourably disposed to their position, even in situations where an administrative Tribunal is tripartite in structure, there are limits on the acceptable partiality of such representatives. The structure of the Appeal Committee as contemplated by the bylaw does not allow the Applicant to choose a nominee who has already decided the issue.
The Court considered whether the appointment of a WRHA Board member to the Appeal Committee was “statutorily authorized” and, therefore, not subject to challenge on the basis of bias. There is no case law to suggest that the common law principles of natural justice, including the rules against bias, can be overwritten by anything less than the will of the legislature as gleaned from the explicit terms of the governing statute or by necessary implication by the nature of the statutory scheme. The Board cannot exclude the application of the principles of natural justice by enacting a bylaw that provides for the composition of an Appeal Committee that would otherwise be subject to challenge on the basis of apprehended bias.
Finally, the Court considered whether the appointment of Father Olds gave rise to a reasonable apprehension of bias. The Applicant’s position was that, even though Father Olds did not participate in the Board’s decision, his association with the Board itself gives rise to a reasonable apprehension of bias. The Supreme Court of Canada has held that association with a Board is not in itself enough to disqualify a person from sitting on an appeal from the Board’s decision. However, a reasonable person would think differently of Father Olds’ ability to maintain his impartiality when the Board, of which he is a member, is the party before him. The perception of his ability to maintain his objectivity must change when the Board, in effect, steps into the position of a party before him by being called upon to defend its decision in the appeal. The Board, as a decision-maker, is a disinterested body. But once the Board is put in the position of an advocate, it presents the appearance of having an active interest in the outcome of a case and the perception of the reasonable person would be that Father Olds, as one of its members, may have difficulty divorcing himself from that.
In the result, the Court granted a Declaration that the bylaw does not permit the Applicant to nominate Dr. Enns or any other person who has participated in the decision of the Hearing Panel in his case. The Court also declared that Father Olds could not be nominated by the Appeal Committee.
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